We often treat our modern system of property rights as a single indivisible monolith. Yet if you scratch below the surface, it's clear that we can break it up into at least two more fundamental pieces: the “right to own“ and the “right to sell“ something. This might seem academic, but I think it is a very useful way to rethink the way we can organize intellectual property.
Let's look at a more straightforward kind of property first though. Say you own a car. You obviously have the right to use it as your own. You're also protected against theft and random appropriation. This is the basic right of ownership. On top of that you also have the right to sell your car to someone else. These two rights go together so often that we tend to think of them as one. It can be useful to draw a line between them though. This becomes clearer when we look at things we consider more sacrosanct than mere possessions.
Your inner organs for example. No one has any right to harvest one of your kidneys against your will. Never mind if it could save another person's life and you'd be perfectly healthy with a single one. You own your kidneys and no one can take one without your consent. On the other hand, even though you have complete ownership over your inner organs, you're definitely not allowed to auction them off to the highest bidder. (You can donate them though, which suggests that the “right to give“ can still be distinguished from the right to sell, but let's put that aside for now.) An extreme example maybe, but it does illustrate that your right to own something shouldn't automatically confer the right to sell it.
I think we should reform intellectual property along the same lines. Someone who dedicates their life to the creation of new ideas does deserve to benefit from some kind of ownership of those ideas. This applies to artistic as well as scientific creations. It makes no difference if ownership is granted automatically like with copyright, or though a formal procedure like a patent. But in all of these cases I would severely restrict the right to sell.
For individual creators it might sometimes be better to have the option to sell their rights, but this benefit doesn't outweigh the overall harm. The problem is that there are very few limits to stop buyers from hoarding intellectual property. At the peak of its power in the 1990s the music industry was particularly notorious for this. They would simply sign up artist after artist with little regard for quality or talent, push them onto the airwaves of some regional radio station for a short period and quickly discard them if they failed to catch on. If you're one of the few people who didn't already listen to it during the first Covid lockdown, check out The Case of the Missing Hit to get an idea of the climate at the time.
Today the biggest offenders are in the software industry. It's almost impossible to get work as a developer without signing an agreement that transfers all your software-related property rights to your employer, regardless of its relevance to your job. On top of that all major software companies are well-known patent trolls. This means that they constantly spam patent offices with applications for “innovations“ that are actually the most trivial of established practices in the industry. No matter that lots of them get rejected outright, because it's worth the effort for the few applications that do slip through. These bullshit patents are then used to bully potential competitors out of the market.
I don't claim to know exactly how this situation will evolve over the next decade or two. Maybe the software sector will still be at it. Or maybe they'll be taken down a peg but the music industry regains its power and gets back to its old habits. It could also be another industry altogether. As long as the current mechanisms stay in place though, you can be certain that some sectors will keep abusing them. That's why we should move away from the horse trading of intellectual property and towards a more durable system of intellectual ownership.
Alternatively, we can just make it legal to sell your organs to the highest bidder. That would at least make things consistent.
This post was originally published on HEY World.